On January 30, 2018, President Trump signed Executive Order 13,823, directing officials to keep the Guantánamo Bay detention camp open and permitting additional detainees to be transported to the facility.Footnote ¹ In announcing his decision during the State of the Union address to Congress, Trump stated, “I am asking Congress to ensure that, in the fight against ISIS and Al Qaida, we continue to have all necessary power to detain terrorists … . And in many cases, for them, it will now be Guantánamo Bay.”Footnote ² Section 2 of the order provides:

1. (a) Section 3 of Executive Order 13492 of January 22, 2009 …, ordering the closure of detention facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked.

2. (b) Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005.

3. (c) In addition, the United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.Footnote ³

The executive order departs from the approach taken by former President Obama. On the second day of his presidency, Obama had ordered the future closure of the detention camp,Footnote ⁴ and throughout his presidency he viewed this camp as contrary to American values and harmful to U.S. foreign policy.Footnote ⁵ Specifically, Section 3 of Obama's executive order had directed that remaining detainees be returned to their home country, transferred to another country or a U.S. detention facility, or released by January 2010.Footnote ⁶ Because of political opposition, this was not accomplished by January 2010 or indeed during Obama's tenure,Footnote ⁷ and Trump's executive order now formally revokes this provision.Footnote ⁸ Still, under Obama's direction, 196 detainees were transferred from the facility, leaving forty-one detainees by the end of his presidency.Footnote ⁹ These forty-one individuals are still detained today,Footnote ¹⁰ although several have been cleared for transfer.Footnote ¹¹ Despite the continuation and geographic expansion in the war on terror, no new detainees have been brought to the detention facility since 2008.Footnote ¹²

In Section 1 of the executive order, Trump deemed the use of the Guantánamo detention camp to be consistent with domestic and international law obligations and necessary in the context of the continued war on terror:

1. (a) Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict.

2. (b) Following the terrorist attacks of September 11, 2001, the 2001 Authorization for Use of Military Force (AUMF) and other authorities authorized the United States to detain certain persons who were a part of or substantially supported al-Qa'ida, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners. Today, the United States remains engaged in an armed conflict with al-Qa'ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.

3. (c) The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.

4. (d) Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.Footnote ¹³

The positions taken here are the subject of robust debate and, in some instances, legal challenge. For example, in January 2018, lawyers representing eleven of the detainees facing the prospect of seemingly endless detention moved for an order granting a writ of habeas corpus, alleging that Trump's refusal to release detainees violates U.S. constitutional law and is unjustified by the 2001 AUMF as interpreted through law-of-war principles.Footnote ¹⁴ The extent to which the 2001 AUMF applies to “associated forces, including … the Islamic State of Iraq and Syria” has also received considerable attention and is the subject of an ongoing lawsuit originally brought during the Obama administration.Footnote ¹⁵ The conditions of confinement at Guantánamo have also been the subject of criticism, as by the United Nations Special Rapporteur on Torture who raised concerns in December 2017 about the ongoing treatment of detainees, including allegations of torture.Footnote ¹⁶

Although Trump's executive order formally reverses Obama's pronounced policy of closing the camp and sends a very different signal of presidential priorities, it remains to be seen how much effect this order will have in practice. The Trump administration has yet to send any new detainees to Guantánamo, although a State Department official has been quoted as saying that two captured ISIS fighters (both with ties to the United Kingdom) allegedly implicated in the 2014 beheadings of two American journalists might end up being sent there.Footnote ¹⁷ The executive order further requires an interagency review headed by the U.S. secretary of Defense to “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.”Footnote ¹⁸ This process must be completed by April 30, 2018.Footnote ¹⁹ Asked in February about whether “Guantánamo will be a solution,” U.S. Secretary of Defense James Mattis responded that “I'm not willing to say anything on that right now. I think the best thing is to define the problem and then we'll get the solution.”Footnote ²⁰